Congratulations, Kagan. Now what?

August 6, 2010

Now that Elena Kagan has been confirmed, one third of the U.S. Supreme Court will be female. That’s right. Three out of nine. And that is quite something, really.

Oh, sure, the nominee’s gender was not a big issue during the confirmation hearings in July. True, Senator Feinstein, did take a moment to note that Kagan is a role model for young women, which is, of course, true. After all, Kagan was the first woman to serve as dean of Harvard Law School and the first female solicitor general of the United States.

And there was a moment during Kagan’s opening statement when she appropriately thanked former Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg for their path-breaking achievements. O’Connor and Ginsburg, as we all know, experienced tremendous discrimination, both in opportunities and jobs because they were women. They persevered, achieved, succeeded and, in the process, paved the way for other women, including Kagan.

So, even though Kagan’s gender wasn’t front and center at the hearings for the fourth woman to sit on the Supreme Court, anyone who says they didn’t notice this salient historical fact during the hearings wasn’t paying attention then, or isn’t being truthful now.

But, as she prepares to take her seat, should it matter? What difference does it make if the justice is male or female, black or white, or gay or straight, for that matter? And if we assume it does matter, why were most (not all) African-Americans happier with the jurisprudence of Justice Stevens, whose seat Elena Kagan will fill, than we have been with the contribution of Justice Thomas? We assume, it seems, a certain universality of experience based upon race or gender that will translate to one’s decision-making on the bench.

That is precisely what President Obama aspires to in seeking the “quality of empathy, of understanding and identifying with people’s hopes and struggles” as a key qualification for a Supreme Court justice.

At the same time, consider the oath Supreme Court Justice Elena Kagan will take: “I, Elena Kagan, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me …” It seems to me that Obama’s empathy and the oath that requires impartiality are not mutually exclusive. They can go hand in hand, as can the search for a court that is diverse, one that looks like America.

But the fact that Elena Kagan will be the third woman on the current court, and only the fourth in history, has got me thinking about the role of women justices, judges and lawyers, generally.

Plainly speaking: Do women lawyers think differently than men? And when it comes to judging, do female judges rule from the bench differently than their male counterparts?

The first woman justice to serve on the high court, Justice O’Connor, issued an opinion on this: “A wise old woman and a wise old man will reach the same conclusion.”

Maybe so, but when I met her colleague, Justice Ruth Bader Ginsburg, several years ago at an annual meeting of the White House Fellows in Washington, she expressed a different opinion. While the remarks she made to our alumni group were off the record, the comments she made to me chatting in the foyer of the U.S. Chamber of Commerce were not. I knew I had only a few minutes with the justice and was eager to hear her views on this very topic — of women and lawyering and whether gender, specifically, or life experience, in general, makes any difference. It was just weeks after Justice O’Connor had retired from the bench, and Justice Ginsburg confessed that she was lonely on the court as the only woman left. I mentioned Justice O’Connor’s oft-cited observation, above. She was quiet for a moment, then softly said that she felt women judges bring to the table their own experiences, which inform their decisionmaking.

It seems great women can agree to disagree.

Jami Floyd is a lawyer, an award-winning journalist and a nationally renowned news anchor.

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